945
McNally and Intangible Rights
|
In McNally v. United States, 483 U.S. 350 (1987), the
Supreme
Court held that the mail fraud statute does not reach "schemes to defraud
citizens of their intangible rights to honest and impartial government" . .
. and
that the statute is "limited in scope to the protection of property rights."
See Carpenter v. United States, 484 U.S. 19, 25 (1987)
(quoting
McNally and extending it to wire fraud statute); see also
Evans
v. United States, 504 U.S. 255, 292 (1992) ("[I]n McNally . . .
we
rejected the Government's contention that the federal mail fraud statute . .
.
protected the citizenry's 'intangible right' to good government . . . . ")
(Thomas, J., dissenting).
In response to McNally, Congress passed Section 1346 of
Title
18, United States Code, which provides that "For the purposes of this
Chapter,
the term 'scheme or artifice to defraud' includes a scheme or artifice to
deprive
another of the intangible right of honest services."
Section 1346, which became effective November 18, 1988, seemed to
resolve the intangible rights issue. See Madeoy, 912 F.2d
1486,
1492 (D.C. Cir. 1990) ("McNally has been overruled by legislation."),
cert. denied, 498 U.S. 1105 and 498 U.S. 1110 (1991); cf.
United
States v. Bush, 888 F.2d 1145, 1145-46 (7th Cir. 1989) (ex post facto
concerns bar the application of section 1346 to pre-1988 conduct). In
United
States v. Brumley, 79 F.3d 1430, 1440 (5th Cir. 1996), petition for
rehearing
en banc pending, however, the court concluded that the wording of §
1346,
"simply does not effect a change in the portion of the McNally
opinion
which held that the mail fraud statute does not reach 'schemes to defraud
citizens of their intangible rights to honest and impartial government.'"
[cited in USAM 9-43.100] | |